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ODONNELL, J.
{ 1} The issue presented on this appeal is whether Dale Johnston can
prosecute a second claim for wrongful imprisonment based on the 2003 amendment
to R.C. 2743.48.
{ 2} The undisputed facts reveal that a panel of three judges found
Johnston guilty of two counts of aggravated murder involving the deaths of his
stepdaughter, Margaret Annette Cooper, a.k.a. Margaret Annette Johnston, and her
fianc, Todd Schultz, whose dismembered torsos were found in the Hocking River
and whose arms, legs, and heads were buried in a cornfield adjacent to the river.
The court sentenced Johnston to death on each count, and subsequently denied
Johnstons motion for a new trial asserting inter alia that exculpatory evidence had
been withheld by the state. Johnston appealed, and the appellate court reversed the
convictions and remanded the case for a new trial. 4th Dist. Hocking No. 412, 1986
WL 8799 (Aug. 6, 1986); 4th Dist. Hocking No. 425, 1986 WL 8798 (Aug. 6,
1986). We affirmed the appellate court and remanded the case, concluding that the
trial court had abused its discretion in permitting testimony from a witness whose
memory had been hypnotically refreshed and that the outcome of the trial may have
been different if the state had disclosed certain items of exculpatory evidence. 39
Ohio St.3d 48, 529 N.E.2d 898 (1988). Following our remand, the state nolled the
indictment against Johnston, resulting in his release from the penitentiary, where
he had spent more than six years on death row.
{ 3} Upon his release from prison, Johnston filed a claim for wrongful
imprisonment pursuant to R.C. 2743.48, but the trial court dismissed it in 1993
because he had failed to prove by a preponderance of the evidence that he did not
commit the murders, which was the statutory burden imposed upon a claimant at
that time. See former R.C. 2743.48, Am.H.B. No. 623, 142 Ohio Laws, Part III,
4675; Ellis v. State, 64 Ohio St.3d 391, 395, 596 N.E.2d 428 (1992) (stating the
burden of proof).
{ 4} Two subsequent developments explain the reason we have accepted
review of Johnstons second claim for wrongful imprisonment:
U.S. 83, 87, 83 S.Ct. 1194, 10 L.E.2d 215 (1963), by failing to disclose evidence
that suggested that the victims may have been murdered at a location different from
that alleged by the state and that someone else may have been responsible for the
murders. 39 Ohio St.3d 48, 56, 62-63, 529 N.E.2d 898.
{ 7} On remand, the Hocking County Common Pleas Court transferred the
case to Hamilton County for trial, which then transferred to Franklin County. The
parties jointly filed a motion with the trial court to determine the admissibility of
the testimony of the witness who had been hypnotized. In response, the court held
that the hypnotically refreshed testimony was inadmissible. The court also granted
Johnstons motion to suppress statements he had made during an interrogation,
along with evidence seized from him and his residence. That suppression ruling
was appealed and affirmed by the Tenth District Court of Appeals on May 10, 1990.
64 Ohio App.3d 238, 580 N.E.2d 1162 (10th Dist.1990). The next day, the state
nolled the indictment against Johnston, and thereafter, he was released from the
penitentiary.
{ 8} Subsequently, Johnston filed a wrongful imprisonment claim
pursuant to R.C. 2743.48, but the common pleas court dismissed it in 1993,
concluding that Johnston had not proved by a preponderance of the evidence that
he did not commit the murders.
{ 9} On April 9, 2003, the General Assembly amended R.C. 2743.48 and
expanded the definition of wrongfully imprisoned individuals to include those who
had been released due to a procedural error subsequent to sentencing. Sub.S.B. No.
149, 149 Ohio Laws, Part II, 3545. Developments in the investigation of the deaths
of Cooper and Schultz culminated in Chester McKnight pleading guilty to their
aggravated murders on December 18, 2008.
{ 10} Based on McKnights plea, Johnston filed a second claim for
wrongful imprisonment, alleging that he was innocent and also claiming that errors
in procedure, including the Brady violations, resulted in his release. Both parties
filed for summary judgment. The trial court accepted Johnstons procedural error
argument, rejected the states position that the 2003 amendment to R.C. 2743.48
was not retroactive, granted Johnstons motion for summary judgment, and
declared Johnston to be a wrongfully imprisoned individual.
{ 11} The state appealed, and the Tenth District Court of Appeals reversed
the trial court and held that the amendment did not apply retroactively to Johnstons
claim and that its ruling rendered moot the states other assignments of error
asserting that a six-year statute of limitations applied to Johnstons claim, that res
judicata barred Johnston from relitigating his actual innocence claim, and that
Johnston had not satisfied the fourth and fifth prongs of the wrongful imprisonment
statute.
consideration and his motion to certify a conflict, and it declined to consider the
states contention that the wrongful imprisonment claim also failed based on our
newly released decision in Mansaray v. State, 138 Ohio St.3d 277, 2014-Ohio-750,
6 N.E.3d 35.
{ 12} We accepted Johnstons discretionary appeal on one proposition of
law: THE DIVIDED COURT IN THE TENTH DISTRICT ERRED WHEN IT,
FOR THE FIRST TIME, HELD IN DIRECT CONTRAVENTION OF THE
EXPRESS WISHES OF THE OHIO GENERAL ASSEMBLY, THAT THE 2003
AMENDMENTS TO
"ERROR
IN
imprisonment statute to include those who can demonstrate that a procedural error
occurred subsequent to sentencing that resulted in the release of the inmate.
Sub.S.B. No. 149, 149 Ohio Laws, Part II, 3545. The statute provides:
Bielat, 87 Ohio St.3d 350, 352-353, 721 N.E.2d 28 (2000), quoting Miller v.
Hixson, 64 Ohio St. 39, 51, 59 N.E. 749 (1901).
{ 19} Determining whether a law violates the Retroactivity Clause
involves a two-step test:
Longbottom v. Mercy Hosp. Clermont, 137 Ohio St.3d 103, 2013-Ohio-4068, 998
N.E.2d 419, 22, quoting Smith at 6.
{ 20} Instructive on this point is the uncodified language in Section 3 of
Sub.S.B. No. 149, which states that the 2003 amendment applies to civil actions
for wrongful imprisonment in the Court of Claims commenced on or after the
effective date of this act, or commenced prior to and pending on the effective date
of this act. (Emphasis added.) 149 Ohio Laws, Part II, 3551.
{ 21} This language expresses the General Assemblys intent that the
application of the 2003 amendment not be limited to wrongful imprisonment
occurring after the amendments effective date. Johnston commenced this action
in the common pleas court subsequent to the effective date of the 2003 amendment
to R.C. 2743.48 and will necessarily commence any resultant action in the Court of
Claims after the effective date of the amended statute. Thus, the amendment
applies to his claim even though his imprisonment predated the amendment.
{ 22} Regarding the second step in the retroactivity analysis, the 2003
amendment is substantive because it imposes new liability on the state for past
imprisonments. However, because the amendment impairs only the rights of the
state and not those of individuals seeking recovery for wrongful imprisonment, the
amendment may nonetheless constitutionally be given retroactive effect in light of
the General Assemblys clear expression of its intent for retroactivity. State ex rel.
Sweeney v. Donahue, 12 Ohio St.2d 84, 87, 232 N.E.2d 398 (1967) (While a
statute which impairs only the rights of the state may constitutionally be given
retroactive effect, such effect will not be given in the absence of a clear expression
of legislative intention for retroactivity [internal citation omitted]).
{ 23} Thus, the 2003 amendment to R.C. 2743.48 applies retroactively to
permit litigation of claims filed in accordance with that amendment.
Conclusion
{ 24} The 2003 amendment to R.C. 2743.48 expanded the definition of a
wrongfully imprisoned individual to include those able to demonstrate a procedural
error occurring subsequent to sentencing that resulted in the inmates release and
applies retroactively to permit litigation of claims on that basis.
{ 25} Accordingly, the judgment of the appellate court is reversed and the
cause is remanded for the appellate court to address the assignments of error it
previously determined moot.
Judgment reversed
and cause remanded.
OCONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, FRENCH, and
ONEILL, JJ., concur.
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Koenig & Long, L.L.C., and Todd A. Long, for appellant.
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